Kaschke v Osler
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith |
| Judgment Date | 21 September 2010 |
| Neutral Citation | [2010] EWCA Civ 1066 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2010/1311 + 1311(A) + 1311 (B) |
| Date | 21 September 2010 |
[2010] EWCA Civ 1066
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
(Mr Justice Eady)
Before: LADY JUSTICE SMITH DBE
Case No: A2/2010/1311 + 1311(A) + 1311 (B)
The Applicant appeared in person.
Mr Robert Dougans (instructed by Bryan Cane Solicitors) appeared on behalf of the Respondent.
Approved Judgment
Lady Justice Smith:
The applicant, Ms Joanna Kaschke, applies for permission to appeal the order of Eady J dated 26 May 2010 striking out her defamation claim as an abuse of process. Ms Kaschke is a German-born naturalised British citizen. She is politically active in London, formerly for the Labour party and Respect Party and latterly for the Conservative Party. The respondent, the defendant to the action, Mr David Osler, is a journalist and an active member of the Labour Party. It is apparent from the submissions that I have heard today that there is a good deal of political animosity between these two people.
These proceedings arise out of an article and subsequent comments posted on Mr Osler's blog. The posts are set out in Eady J's judgment. They relate to Ms Kaschke's activities in Germany in the 1970s. The essence of Ms Kaschke's complaint is that Mr Osler's article without foundation linked her to the radical left-wing, terrorist, Baader-Meinhof group and hence, she says, to terrorism. Mr Osler maintains that his article was itself based on an article he had seen on Ms Kaschke's own website. He claims that that article comprised in part a translation of an extract from an article which appeared in the German newspaper Der Spiegel in September 1975.
Ms Kaschke's own article is no longer available online and she has not disclosed it in these proceedings. She has, however, confirmed to me today that it did exist and she has explained to me the circumstances in which it came to exist and the purpose for which she published it. I will return to that a little later.
The Der Spiegel article, as translated, said:
“Suspected of having assisted a ‘criminal gang’ is also bookseller Johanna Kaschke, arrested on 10 July, whilst she worked in anarchistic organisations like ‘Red Help’ and Black Help.”
Ms Kaschke accepts that she was arrested by the German authorities in 1975, but denies that she was ever charged with any offence or that the Baader-Meinhof group was ever mentioned at that time. Not only that, Ms Kaschke asserts, and it is accepted, that investigation by the German police demonstrated that she had done nothing wrong and in due course she was released without charge and received compensation for wrongful arrest.
Mr Osler's article was published on 7 April 2007. On 26 May 2007, having been alerted by Ms Kaschke to her discovery of the article, he published a piece written by her which he describes as her “right of reply”. Mr Osler has maintained that he has always accepted and acknowledged Ms Kaschke's innocence of any suspicion or charges that were laid against her in the 1970s.
After the right of reply had been published, about ten months elapsed before Ms Kaschke renewed her complaint on 28 March 2008 and issued proceedings a month later on 28 April 2008. Under the limitation provisions of the Defamation Act, a claimant is allowed only to rely on publications made within the year before issue of proceedings. It is possible for that period to be extended but, as I will explain, it was not extended in the present case.
The matter came before Eady J on 23 April 2010, a week before the date that had been fixed for trial. On that occasion Mr Osler was, for the first time, represented by Mr Dougans, who applied to serve an Amended Defence and also to strike out the claim. These applications were plainly made unacceptably late. Defences of justification, fair comment, qualified privilege, limitation and accord and satisfaction were raised. Some of those defences were plainly not going to succeed. Others might have done. Mr Dougans also submitted that certain passages complained of in his blog were incapable of bearing any defamatory meaning and that, given the publication of Ms Kaschke's right of reply, she did not require any further vindication of her reputation to be obtained by proceedings.
As I understand it, the application was heard in the course of one day, and judgment was reserved until 13 May when it was handed down. In his judgment, Eady J asked himself whether there was anything which required vindication, taking into account what he considered to be the marginal damage done to Ms Kaschke's reputation by Mr Osler's article in that it had overstepped that which had been published in 1975 by Der Spiegel and re-published by Ms Kaschke herself. He concluded that this was an exceptional case of the kind envisaged in Jameel (Yousef) v Dow Jones and Co Inc [2005] QB 946. In that case, the Court struck out the claim because the damages which would be recovered would be small and the expenditure that would be required both of the defendants and of the courts if the case were to be pursued could not be justified. Eady J took the view that the nominal damages and the limited vindication which Ms Kaschke might obtain would be entirely disproportionate to the resources required for what was estimated to be a two-week jury trial. He considered therefore that the claim amounted to an abuse of process and ought to be struck out.
In addition he considered that there was no valid reason for extending the limitation period and that therefore some of the consequential publications that had followed on from Mr Osler's publication would fall outside the limitation period. That would, thought the judge, increase the disproportionality of the proceedings. The judge accepted the submissions of Mr Dougans that some passages of these publications were in any event incapable of bearing any defamatory meaning. The scope of the action was limited and that also tended to increase disproportionality.
In the event the judge struck out the claim and made a costs order against Ms Kaschke, directing that she should pay £5000 costs in respect of the application to strike out and half the costs of the action. He reduced the costs of the action by 50%, as I understand it from Mr Dougans today, because he was of the view that the application to strike out should have been made at a much earlier stage and the costs of the action were higher and more extensive than they should have been. Today Mr Dougans has indicated that his client would be prepared to waive the costs of the action, although he seeks to uphold the judge's order in respect of the £5000 costs in respect of the application to strike out.
Ms...
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